We hope you enjoyed Monday’s post – our fourth April Fool’s Day blog entry.  Though some find April 1 joke posts to be silly and unnecessary, we have to admit that we love writing them.  If only you, our dear readers, loved reading them.  Maybe you do. If you missed it, the title was “North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same.”  Yes, yes, we wrote a post about a dying meme, but the best part is that the post is about the fact that the meme is dying. See how we were capitalizing on it and distancing ourselves from it, too? That’s the only way to be.

By the way, in the interests of completism, we present these links to our three past April Fool’s Day Posts:

“American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012)

“Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

“Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)

So, even a few days after this year’s April Fool’s Day, you can now go back and revisit our posts from April Fool’s Days past.  Better late than never, eh? Enjoy.

By the way, above, you’ll find the cover of Franklin Richards: April Fools #1, published by Marvel Comics not so long ago in 2009.  Franklin Richards, as you may know, is the son of Mr. Fantastic and the Invisible Woman, both of the Fantastic Four.  His relationship to April Fool’s Day remains unknown to us.

Walter Olson’s recent tweet about social media spoliation got us thinking about a familiar 2006 case on that topic.

These days, you can assume that a Plaintiff maintains some type of social media presence.  We have previously discussed the manner in which this type of evidence can be developed and explored.  However, because Plaintiffs’ attorneys have become somewhat more savvy on these issues, you may wish to warn them outright not to destroy any such evidence.

Which brings us to Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D. Puerto Rico 2006). As a 2006 case, it’s ancient in social media time. But it’s so directly on point that we still typically enclose a copy of it when we send an opposing party a social media preservation letter.

In that case, Judge Gelpi spells out precisely the point that Plaintiffs should not, and must not, delete or otherwise destroy relevant social media evidence.  The Plaintiff, a spa customer, claimed she was assaulted, and as a result, developed “intense mental anguish, feelings of shame, humiliation, depression, unworthiness, weeping and has been forced to undergo psychological treatment and therapy.” She also claimed that her job and marriage had suffered as a result of the alleged incident (which is not detailed in the court’s order).

At some point, defense counsel found the Plaintiff’s websites and notified her attorneys.  Not long thereafter, the websites vanished from the Internet, prompting the defendant to file a motion to dismiss for fraud on the court.  The district court noted:

At some point during the case, defendants learned outside of discovery that [Plaintiff] possessed several web pages depicting an active social life, and an aspiring singing and modeling career. These web pages were in direct contradiction to [Plaintiff’s] assertions of continued and ongoing mental anguish. At the time the web pages were discovered, neither plaintiffs nor plaintiffs’ counsel had knowledge that defendants had discovered the pages. Defendants were able to download and print out much of the content of the web pages and subsequently informed plaintiffs’ counsel that eliminating or altering the websites could be considered spoliation or evidence tampering. Two days after plaintiffs were alerted about defendants’ knowledge of the websites, the same were deleted in their entirety. No plausible explanation has been offered for this. Defendants now move for sanctions, to wit, that [Plaintiff’s] case be dismissed or in the alternative that her damages be eliminated or reduced.

Although the court did not dismiss the case outright, it did sanction the Plaintiff, “eliminat[ing] all possibility of introducing evidence of continuous or ongoing mental anguish on her part.”  In so doing, the court stated as follows:

In this case, [Plaintiff] did not make it known to defendants that she had an aspiring modeling or singing career. In fact, she attempted to depict the life of a recluse with no or little social interaction. Instead, [Plaintiff] led an active social life and announced this information to the world by posting it on very public internet sites. Then, immediately upon defendants’ discovery of evidence, which could be used to contradict or impeach her allegations, [Plaintiff] removed the information from the internet. This is the type of unconscionable scheme the court seeks to deter.

It doesn’t get any more clear cut than that.

Accordingly, when we become aware that a Plaintiff has a potential presence on the internet, we will serve a preservation letter on the Plaintiffs’ attorney and enclose a copy of this case.  As a practical point, it is best to capture and preserve as much of the publicly available version of the Internet site as possible, so that one can compare what may have once existed with what is later deleted.

Not too long ago, friend of the blog, Erik Mazzone of the North Carolina Law Blog, put together what he called a Legal Geek Meetup here in Charlotte.  This event was officially sponsored by the North Carolina Bar Association’s Law Practice Management Section (of which Mazzone is director). Assisting in the arrangements were two local Charlotte lawyers, myself and Ketan Soni.  (You didn’t think they would have a legal geek meeting in Charlotte without having us involved, did you?) The purpose of the first such event was to bring together like-minded young lawyers with an interest in social media and technology.  Here is the official description of the series of events:

Legal Geek events are designed to help lawyers and legal professionals interested in practice management and technology learn from each other. Each meetup focuses on a different topic, and may occasionally involve short presentations. While offered primarily to NCBA members, all local legal professionals are welcome to attend. There is no cost to attend these events.

The event was a success. Held at Charlotte’s new Heist Brewery, the meetup attracted at least 20 or so young lawyers.  (Even fabled North Carolina law blogger Lee S. Rosen made an appearance.). It was a fine – and low pressure – networking event (and by its very nature, it did not include a formal presentation or CLE credit).  Many, but not all, of the discussions had by the participants centered around tech or tech culture: Twitter, blogs, and using same to advance one’s practice. Basically, it was a just a fun get together for folks unafraid to refer to themselves as “legal geeks.”

There are upcoming events in Raleigh/Durham (April 11), Fayetteville (May 14), and, of course, Asheville (June 19).

If you’re interested in becoming a part of the events, see here.

This morning, a superior court judge in Wyatt County, North Carolina granted a citizen’s request for a declaration that the Harlem Shake was “over as a meme” and issued a corresponding injunction prohibiting YouTube from accepting further videos depicting or otherwise seeking to capitalize upon the phenomena.  See Yorke v. YouTube, LLC, et. al., No. 2013-CVS-20213 (N.C. Sup. Ct. April 1, 2013).

This is big news.

Filed in mid-March by North Carolina resident Robert Yorke, the complaint sought a declaration that the “Harlem Shake is, and of right ought to be, over and done as a meme” and requested injunctive relief to facilitate the declaration.  The Plaintiff, a self professed “social media scholar” living in Western North Carolina, found himself irked by the increasing deluge of “Harlem Shake” videos he encountered across the web. In an affidavit accompanying the motion, Mr. Yorke complained that he could not access Facebook, Twitter, Orkut, or even Friendster, without seeing at least two “Harlem Shake” parody videos.  Claiming that the ubiquitous meme caused him personal injury, “an unyielding ennui,” and business interruption, he also seeks money damages and class certification. He conceded that the meme could, for at least some initial period of time exist and begin to wither away, but argued that time had long since passed.

A hearing on the request for declaratory relief and the accompanying motion for temporary injunction was conducted last week.  This morning, the court issued its first order in the case granting the Plaintiff’s request for the aforementioned equitable relief.

Citing Wikipedia, the court defined the “Harlem Shake” as follows:

The videos usually last about 30 seconds and feature part of the 2012 song “Harlem Shake” by American electronic musician Baauer. Baauer’s song starts with a 15 seconds intro, a bass drop, then 15 seconds with the bass, and a lion roar at the end of the first 30 seconds. Usually, a video begins with one person (often helmeted or masked) dancing to the song alone for 15 seconds, surrounded by other people not paying attention or seemingly unaware of the dancing individual. When the bass drops, the video cuts to the entire crowd doing a crazy convulsive dance for the rest of the video. The dancing style should not be confused with the original Harlem Shake dance. Additionally, in the second half of the video, people often wear a minimum of clothes or crazy outfits or costumes while wielding strange props.

(The court also apparently cribbed a bit from this article from The Atlantic by Kevin Ashton in reciting the history of the meme.).

Noting a state’s compelling interest in the “orderly processing and disposal of cultural fads,” the court invoked its inherent power in granting the request. In so doing, the court relied heavily on the American Law Institute’s Restatement (2d) of Memes, which provides:

Memes are, by their very nature, ephemeral. The accelerated pace of digital culture demands that certain Internet fads be summarily dismissed to make way for the next viral video or concept. However, as initially popular memes continue to permeate the outer reaches of Internet culture, the initial perpetrators and early adopters of such a meme will grow increasingly more weary of them. Accordingly, formal judicial rejection thereof is sometimes appropriate when the meme outstays its welcome. Although litigation surrounding the evolution of a meme is usually inappropriate, a court may rely on its inherent power to steward a stale meme more quickly to its inevitable demise.

Restatement (2d) of Memes § 135 (2012); see also In re Gangnam Style Litig., No. 12191975, MDL–3500 (E.D. Tex. January 29, 2013) (noting “short lived” nature of memes and creating three pronged test to determine appropriateness of judicial intervention in same).

Noting that North Carolina had not yet adopted § 135 of the Restatement, attorneys for YouTube argued against the injunction, noting that the matter was “nonjusticiable” in the courts and that a legislative solution would be more appropriate under the circumstances.  In re: Morrissey Concert Cancellation Litig., 872 F.3d 606, 615 (D. Colo. 2013) (finding that the court’s could not fashion a remedy to prevent the British singer from canceling future concerts as such an order would be “futile, fruitless, and without any hope of earning obedience,” and thus, the issue was more apt to be addressed by the legislative branch).  In advancing this argument, YouTube’s counsel directed the court’s attention to the recent Anti-Rickrolling Statute adopted by Texas State Legislature.  See Tex. Civ. Prac. & Rem. Code Sec. 174.001, et. seq (prohibiting any and all attempts within the state to fool, deceive, or otherwise trick a person into viewing a video featuring and/or otherwise depicting the singer Rick Astley).  When the court rejected that argument from the bench, counsel for YouTube noted that the meme was “already dying an albeit slow death” and the parties “need only await its natural end.” Rejecting that contention as a “backwards mootness argument,” the Court proceeded to grant the Plaintiff’s request from the bench.

Under the order, YouTube has five days to develop a system to prevent uploading of additional “Harlem Shake” videos.  The order also imposed on YouTube a duty to monitor its video library for pre-injunction videos which are “particularly lame” and remove them.

The court made a number of other rulings, as well. YouTube scored a minor victory when it successfully sought to exclude the proposed expert meme testimony of Antonie Dodson at the hearing.  Further, the court denied the motion to intervene filed by a series of  YouTube commenters on the grounds that they were vexatious litigants, which the court assumed, since the movants were YouTube commenters.

A hearing on YouTube’s motion for partial summary judgment on Mr. Yorke’s alienation of affection claim has been set for May 6.

We’ll continue to keep you apprised on this case as it develops.

Happy Easter from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We hope that you are your family have a wonderful and safe holiday. In honor of the occasion, above, you’ll find the cover of Yogi Bear’s Easter Parade #2, published way, way back in 1978. Note that Yogi apparently teams up with a host of famed characters, including Scooby Doo, Fred Flintstone, George Jetson, Top Cat and Quick Draw McDraw!

Above, you’ll find the cover of Captain America #611, published not so long ago in 2010. This issue features the first installment of the storyline “The Trial of Captain America,” which you may recall we previously mentioned here and here. Apparently, Captain America is taken into custody by the law enforcement authorities, but they fail to remove his mask. How do they log him into the system without removing his mask and determining his identity? How do they ascertain any prior offenses or warrants if they do not confirm his real name? Is it the respect and awe that the officers must hold for the fabled Captain American that prevents them from performing their routine? Isn’t there a safety concern in allowing a suspect to remain in a costume? Why do superheroes always receive special treatment from cops or prison wardens with respect to the retention of their costumes? We may never know.

Robert Kessler of The Atlantic Wire asks: “Why aren’t there cameras allowed at the Supreme Court again?”

Buzzfeed, as you know, is always making lists. List after list and list. But here’s one we couldn’t resist sharing: “The 33 Most Beautiful Abandoned Places in The World.” There are some hauntingly beautiful – or beautifully haunting – photographs in that collection, so we encourage you to pause today from your quotidian toil and investigate.

This weekend, of course, is Easter. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a happy and safe Easter.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line! You know you want to! Did you know, also, that you can follow our lawyers Gray Culbreath and Mills Gallivan on Twitter, as well? Since it’s #FollowFriday on Twitter, why not give them a follow today as we head into the weekend?

One of the great things about our firm is the flood of sports related emails which deluge our email inboxes on the eve of any big contest. This is a big part of our firm culture, in fact. March Madness is no exception.  Inevitably, Howard Boyd, senior name partner of the firm, shares his wisdom with the recipients of such emails. Today, we couldn’t resist sharing the email he sent at 8:41 PM this past Friday night:

Some of you are aware that Florida is playing a directional school tonight – Northwestern Louisiana State University in Natchitoches, Louisiana. I am confident I am probably the only one in the firm who has actually been to Natchitoches and watched the Purple Demons play. While stationed at Fort Polk in the Army in 1973, I went up there to watch Robert Parish, then a freshman at Centenary, play against NSU. He was as good as advertised, and he went on to a great college and pro career. I and a few hundred fans rattled around a high school like gym to watch that game that night. Glad to see the Demons in the Big Dance. They have come a long way. Not to be confused with the infamous USL (University of Southwestern Louisiana),  which was an outlaw program which received the death penalty after Dwight “Bo” Lamar led them to a near NCAA title before they were caught for 125 major recruiting violations in 1973. Centenary also got probation for recruiting Parrish – the nation’s best big guy who inexplicably signed with little Centenary.

Northwestern State ultimately fell to Florida.

Behold, the cover of Daredevil By Ed Brubaker & Michael Lark Ultimate Collection – Book 1, published not so long ago in the late 1990’s. As you can see, Daredevil finds himself in jail, although once again, for some reason, the prison warden has permitted a superhero to remain in costume while incarcerated.  Here’s how Amazon describes the narrative:

For the past few years, Matt Murdock’s life has been teetering on the edge of destruction. Now, pushed beyond the limit, Matt finds himself behind the eight ball with no clear way out, the people he calls friends slowly deserting him, and Hell’s Kitchen gradually slipping out of control. The question is, when his back is against the wall. just how far will Daredevil go to get back what is his? Plus: a special episode focusing on Daredevil’s best friend, Foggy Nelson. Spinning out of the stunning finale of Brian Michael Bendis and Alex Maleev’s ground-breaking run, Brubaker and Lark pick up the billy club and run as hard and as fast as they can to leave their own mark on one of comics’ most enduring legends.

Um, that doesn’t really tell us why he’s in jail.  Or what charges he faces. Maybe we’ll just go back and read our September 2011 interview with Daredevil writer Mark Waid.

Uh-oh.  Bob Dylan is touring again, and he’s playing right here in our backyard in Charlotte, North Carolina. What to do? For our previous thoughts on him, please see here, a brief reference  here, here, and here).

Have you ever thought to yourself, “Gee, I really dig Abnormal Use and would like to know more about its writers!”  If so, you’re in luck.  Today, we’d like to introduce you to Nick Farr, so please read his official attorney biography here.

Many years ago, during my first quarter of law school in Waco, Texas, the legal writing professor warned the students that a legal education would forever transform the way we think.  We were, of course, skeptical.  But as the weeks and months passed, we realized that he was correct.  Previously innocuous advertising and billboards prompted warranty analysis.  Coupons and advertisements in the newspaper – yes, there were newspapers, then – became subject to contractual analysis.  Suddenly, our relationships with our landlords became much more formal, as we, the new law students, actually read the provisions of our leases and discussed them in detail with leasing office employees when problems arose. Armed with just a little knowledge, we were likely annoying.

As most of you lawyer readers know, this reshuffling of the mind continues throughout the rest of our lives.  Once one matriculates through law school, you view everything with lawyers’ eyes.

Recently, I was traveling western North Carolina, and I found myself at the registration desk of my hotel.  The attendant assigned me a room; it was room 403.  Lawyer that I am, I couldn’t help but conjure up the rules of evidence in my mind. Federal Rule of Evidence 403, of course, is the federal rule of evidence governing the admissibility of relevant, though unfairly prejudicial, evidence.  You’ll recall that one proper objection, when invoking Rule 403, is that any probative value of the proffered evidence is outweighed by the potential for unfair prejudice.

Now, as I recite that rule, I remember the refrain of my evidence professor, who noted that it was always “unfair” prejudice that the rule excludes because any evidence that one seeks to introduce against one’s opponent is always, by its very nature, prejudicial.  It’s only unfair prejudice that the rule is barred against.

And so, whereas a carefree non-lawyer might have simply trekked to his room and began to enjoy his day off, I immersed myself in the rules.

Oh, well.

Above, you’ll find the cover of Simpsons Comics #108, published not so long ago in 2005.   This is yet another comic book cover where a line-up is not exactly constitutional, as the defendants all look so very different.  Sigh.  We would have identified Homer (who predictably, but suspiciously in this context, holding a doughnut).  We’re sure it was him, whatever the offense may have been.

In last week’s edition of Friday Links, we featured the cover of Real Fact Comics #19, which featured a a self styled “Camera Cop” taking photographs of a crime as it happened. One reader emailed to note: “Since the camera sees exactly what the police officer sees, it appears that the photos would be classic illustrative testimony dependent on the testimony of the officer for foundation.”

The other day, when attempting to visit our own website, we accidentally entered the URL address AbnormalSue.com.  We guess that works, too, to describe commentary on unusual lawsuits.

Oh, and beware The Ides of March today.

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